The Low Percentage Odds for Short-term Victory for Fast Food Workers

New OrleansIn a somewhat perplexing article by Arun Gupta on fast food workers organizing featured in the December issue of In These Times, once the reader was able to get past the obvious, his feinted surprise, and anonymous ex-organizer interviews about recent fast food worker organizing (that these are publicity strikes, that they are financed by SEIU, that community organizations originally part of ACORN are doing the work, and that these are not grassroots, spontaneous worker eruptions), there was an interesting recitation of the SEIU strategy for the “endgame” or next steps in the organizing.

There were three pieces articulated:(1) break down the wall between a parent corporation and its individual franchisees, which means essentially proving for the purposes of labor law that they are co-employers; (2) try to ratchet up the liability of “wage theft” proceedings which can multiply the damages, particularly under DOL rules if able to prove that the breach was willful and deliberate, and use these claims as leverage to negotiate “neutrality agreements” for organizing, and (3) try to exert international pressure on global fast-food chains to provide additional leverage in the US for worker unionization.

Categorically, regardless of the merits of the organizing or the validity of the strategy, SEIU deserves unanimous applause, which was certainly not the tenor of the Gupta piece, for being willing to put their dues dollars, organizing talent, and institutional prestige behind organizing millions of underpaid, low wage fast-food workers.This shouldn’t be a left-handed compliment or one-hand clapping, this should be a full-throated, standing ovation for SEIU once again stepping up to the obvious demand of workers for a plan and responsibility of the labor movement to organize the unorganized.Hip-hip-hooray!

What was unspoken and almost snarky in the piece is that the real investment by SEIU was less strategic than a search for worker “heat.”There’s no way to read the strategy and not understand that what SEIU was willing to do, and it was laudatory, was essentially to “throw it up against the wall and see if anything would stick.”The unnamed SEIU official quoted in the piece as saying that, “Definitely over the next two years we’re going to have to take a look at this and see where we’re going” was also speaking plainly that not even SEIU can afford to keep pouring in millions if there’s not enough “heat” by workers on the near term, because everything about the articulated strategy is long term, perhaps measured in decades, if the union is really serious, and is more an “exit” strategy for keeping the campaign going with lawyers and allies, than something with a serious expectation of victory anytime soon.

There are cases before the Supreme Court now that challenge “neutrality” agreements by HERE and indirectly challenge the co-employer status of home care workers between the state and clients for homecare workers in Illinois.The McDonalds and other fast-food corporations have a legion of lawyers and have survived decades of commercial law challenges that try to parse the distinction between parent and franchise holder and the big boys have won.Going through the NLRB to prove co-employer status would be a more likely route, but winning those cases, though achieved in homecare, is notoriously difficult and would not finally be decided for years, even if successful at every step until it also survived a Supreme Court challenge.The same would have to be said about proving deliberate intent on wage theft cases under the DOL rules.It would take years of winning smaller decisions, dodging whether or not the infractions were committed by franchisees or based on corporate policy, and then finally surviving all of the court challenges to prove the case.International pressure isn’t an easy fix either, given the very limited organizational success in organizing fast-food globally and the hard problems Sodexho created for that strategy as well.

Not that all of this isn’t possible.This was also part of the strategy and tactics behind victories in homecare, but it ignores how low the odds of success are, how difficult to thread the needle, and the stark historical differences, including the reality that private sector home-care is still virtually unorganized, compared to our success with public forms of homecare.

Nonetheless this is work that needs to be done, requires long term commitment, and patient investment, and let’s hope SEIU and the labor movement as a whole understands that that is what is needed here not just more publicity about a few workers stepping out in various cities.The fire is coming, but it may take a while to kindle.